Practice area

Assigning a presale contract in British Columbia

An assignment is not a sale of a home. It is a sale of a contract, and the contract itself sets out whether you are allowed to sell it and on what terms. Developer consent, GST, and the question of whether you remain liable after the assignment are all decided by documents that already exist. This page sets out what to read and in what order.

Typically · you
Subject removal
The date your conditions come off and the deal becomes firm. Financing, inspection and strata document review all have to be done by now. Your contract sets this date, not us.
If it slips
The contract can collapse. If you are not ready, the extension has to be agreed in writing before the deadline passes rather than after.
Your contract sets these dates. Everything between them is our work: the searches, the lender's instructions, the signing, the registration.
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Set by law
Rescission period ends
The home buyer rescission period set by the Property Law Act, which runs from acceptance and lets a buyer back out of a residential purchase on payment of a fee. It applies whether or not anyone mentions it.
If it slips
This one does not slip. It runs from acceptance on a fixed basis and cannot be extended by agreement.
Your contract sets these dates. Everything between them is our work: the searches, the lender's instructions, the signing, the registration.
Start your file
Typically · you
Your file opens with us
We receive your contract, verify your identity, and check the completion, possession and adjustment dates against each other. The earlier this happens the more room there is to fix anything.
If it slips
Everything downstream compresses. A file that opens late is the most common reason a completion runs tight.
Your contract sets these dates. Everything between them is our work: the searches, the lender's instructions, the signing, the registration.
Start your file
Typically · us
Title search and strata documents ordered
We search title for what is registered against the property, and on a strata we order the Form B and the associated records. This is where anything unexpected surfaces.
If it slips
A charge nobody knew about, found late, is a much bigger problem than the same charge found early.
Your contract sets these dates. Everything between them is our work: the searches, the lender's instructions, the signing, the registration.
Start your file
Typically · your lender
Lender instructions received
Your lender sends us their mortgage instructions and we prepare the documents. They arrive on the lender's schedule rather than ours, so we chase them instead of waiting.
If it slips
This is the single most common cause of a late completion. We will tell you as soon as a date looks at risk rather than on the morning it fails.
Your contract sets these dates. Everything between them is our work: the searches, the lender's instructions, the signing, the registration.
Start your file
Typically · you
Document signing
You sign the transfer, the mortgage and the statement of adjustments, at our office, at yours, or remotely anywhere in the province. Bring identification.
If it slips
Signing has to happen with enough room to get documents where they need to be. Tell us early if you will be away.
Your contract sets these dates. Everything between them is our work: the searches, the lender's instructions, the signing, the registration.
Start your file
Typically · you
Funds to our trust account
Your balance of funds arrives by bank draft or wire. Never by email instruction, and never in response to a message that changes our banking details.
If it slips
Without cleared funds we cannot complete. This is a hard stop rather than a soft one.
Your contract sets these dates. Everything between them is our work: the searches, the lender's instructions, the signing, the registration.
Start your file
Typically · us
Completion
We register the transfer and the mortgage at the Land Title Office, the money is released to the seller's lawyer, and the property becomes yours.
If it slips
Registration and the release of funds happen in a set order. A late advance can push completion to the next business day, and your contract governs what that means for you.
Your contract sets these dates. Everything between them is our work: the searches, the lender's instructions, the signing, the registration.
Start your file
Typically · your realtor
Possession
The day you can physically move in and collect the keys. Frequently the day after completion rather than the same day.
If it slips
Possession is set by your contract. Confirm the key handover arrangement with your agent rather than assuming it.
Your contract sets these dates. Everything between them is our work: the searches, the lender's instructions, the signing, the registration.
Start your file

Set by lawStandard practice, typically

Select a milestone for what happens there, and what it costs if it slips.

General information based on standard practice in British Columbia. Your contract governs your actual dates. This is not legal advice and does not create a solicitor-client relationship.

A concrete residential tower under construction against a deep blue sky, with a crane above the open floor slabs.

Who this is for

Presale assignment

You signed a presale contract for a home that is not built yet, and you want to transfer that contract to someone else before completion, or you are the person taking it on. It applies to strata presales and to contracts for houses that have not completed. If the building has completed and title exists, that is a purchase or a sale rather than an assignment.

The work

What we do

01Read your original presale contract before anything else, because it decides whether an assignment is possible at all, what the developer can charge, what conditions apply, and whether you can market it.
02Identify the developer's consent process, get their forms early, and start it, because consent runs on the developer's timetable and can be refused.
03Draft or review the assignment agreement: what is being assigned, what the assignee is reimbursing you for the deposit already paid, who carries the deposit instalments still to come, and what happens if the developer refuses consent.
04Deal with GST expressly rather than leaving it to be argued about. An assignment of a contract for newly built residential housing is a taxable supply, it is separate from the GST payable on the completed home, and the agreement has to say who accounts for it.
05Handle the reporting. Developers of strata presales are required to collect assignment information and file it with the provincial register, so an assignment is a reported transaction rather than a private arrangement between two people.
06Establish whether the assignor is released from the original contract or stays liable to the developer alongside the assignee, because the default in most contracts is not a release.
07Make sure the assignee receives the disclosure statement and every amendment to it, and understands exactly what they are stepping into: the completion date, the balance owing, and the deposit obligations.
08Coordinate with the developer's solicitor so that on completion the transfer is registered in the assignee's name correctly, with the property transfer tax and GST positions matching what was agreed.

Your part

What we need from you

Gathering these early is the single biggest thing you can do to keep a file on schedule.

Two pieces of government-issued identificationOne has to carry your photograph, for every party.
The complete original presale contractWith every addendum and every amendment. The assignment clause, the consent requirement, and the developer's charge are all in there, and none of the rest of the work can start without reading it.
The disclosure statement and all amendments to itThe assignee is taking on a contract for a development described in that statement. Amendments change the building, the timing and sometimes the unit. Handing them over is part of the assignment, not an afterthought.
Proof of every deposit instalment paid, and what is still dueThe assignee normally reimburses what you have paid and takes on what is left. Both halves have to be documented, because the developer holds the money and will not adjust it between you.
The developer's contact for assignments, and their formsEvery developer runs this differently. Their consent form, their fee, their conditions, and their information requirements are theirs to set, and starting the request late is how assignments miss their date.
Your GST registration status, and what you intended when you signedWhether you bought to live in the home or to resell it affects both the GST treatment of the assignment and whether the Canada Revenue Agency treats your profit as business income rather than a capital gain. Tell us the truth about this at the start.

Risk

Watch for

The things that actually derail this kind of file, rather than the ones that sound alarming.

Developer consent, which is not a formality

Almost every presale contract prohibits assignment without the developer's written consent. The developer sets the conditions, the paperwork, and the charge, and may restrict how you market the contract or refuse consent outright. Consent can also simply take longer than the date you agreed with your assignee. Start it before you agree a completion date, not after.

GST treatment of the assignment itself

An assignment of a contract for newly constructed residential housing is a taxable supply, separate from the GST payable on the finished home at completion. How the portion attributable to the deposit is treated, and who is responsible for collecting and remitting, has to be written into the assignment agreement. Separately, the Canada Revenue Agency may treat an assignment profit as business income rather than a capital gain, which is an accounting question worth asking before you sign, not at tax time.

The assignment is reported to the province

Developers of strata presales are required to include assignment terms in their contracts and to collect and file assignment information with the provincial register. Names, contact details and the consideration are collected and shared with tax authorities. Anyone approaching an assignment as an off the record transaction is working from an out of date picture.

You are usually still on the hook after you assign

Unless the developer expressly releases you, assigning transfers the benefit of the contract without ending your obligations under it. If the assignee fails to complete, the developer can look to you. The release, or the absence of one, is the single most important term to check, and it is rarely the one people ask about.

Questions

Common questions

Can I assign my presale contract?

That is decided by your contract, not by general law. Most developer contracts prohibit assignment without written consent, and many restrict it further: no public marketing, no assignment before a stated stage of construction, and a charge payable to the developer. Send us the contract and we will tell you what it actually permits before you list anything.

Do I pay GST on an assignment?

An assignment of a contract for newly built residential housing is a taxable supply, so GST is in play on the assignment itself, separate from the GST on the completed home. Who collects and remits it, and how the deposit portion is treated, should be set out in the assignment agreement rather than assumed. This is an area where getting accounting advice before you sign is worth the appointment.

Is my profit a capital gain?

Not necessarily. The Canada Revenue Agency looks at what you intended when you entered the presale contract, and where the pattern suggests you bought to resell, the profit can be treated as business income and taxed differently. Your accountant should answer this, and should answer it before the assignment rather than the following spring.

Does the developer have to approve my buyer?

Where the contract requires consent, yes, and the developer can set conditions on it, including credit or identification requirements for the incoming party. Consent is a real step with a real timeline attached. Build it into your dates.

Once I assign, am I finished with the contract?

Only if the developer releases you in writing. Otherwise you have transferred the benefit of the contract and kept the obligations, and if the assignee does not complete, the developer can come back to you. Check for a release, and if there is not one, understand what you are still carrying.

Talk to us about your file

We quote your file in writing before we start work, so the number on your statement of adjustments is the number you agreed to.

Start your file Send us your file: Purchase